DiMisa v. Elwood Union Free School District

Appellate Division of the Supreme Court of New York

DiMisa v. Elwood Union Free School District

269 A.D.2d 488, 703 N.Y.S.2d 732, 2000 N.Y. App. Div. LEXIS 1953

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 22, 2000

StatusPublished

Cited by2 cases

This text of 269 A.D.2d 488 (DiMisa v. Elwood Union Free School District) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DiMisa v. Elwood Union Free School District, 269 A.D.2d 488, 703 N.Y.S.2d 732, 2000 N.Y. App. Div. LEXIS 1953 (N.Y. Ct. App. 2000).

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Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 4, 1999, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant, Elwood Union Free School District, made out a prima facie case of its entitlement to summary judgment. The infant plaintiff was injured when another student ran into her and fell on top of her during a relay race organized by her school as part of a “field day” competition. The infant plaintiffs unanticipated collision with her fellow student was the sole cause of her injuries. The relay race was adequately supervised by two physical education teachers and all five fourth-grade teachers. No other accidents occurred at this field day or during field days in the previous two years that would have put the defendant on notice that such relay races were dangerous. (see, Buckvar v Syosset Cent. School Dist., 148 AD2d 409).

In opposing the defendant’s motion for summary judgment, the plaintiffs contended, inter alia, that the course of the relay race had been negligently designed. However, the affidavit of the plaintiffs’ expert submitted in support of the negligent design claim was purely speculative, and therefore was insufficient to defeat the motion for summary judgment (see, Fallon v Hannay & Son, 153 AD2d 95). Despite the plaintiffs’ attempt to raise factual questions, the undisputed proof establishes that the presence or absence of supervision was not a contributing factor to the happening of the accident (see, Pitner v Brentwood Union Free School Dist., 254 AD2d 340; Hauser v North Rockland Cent. School Dist. No. 1, 166 AD2d 553; Gattyan v Scarsdale Union Free School Dist. No. 1, 152 AD2d 650). Thompson, J. P., Sullivan, Krausman and Smith, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 4, 1999, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant, Elwood Union Free School District, made out a prima facie case of its entitlement to summary judgment. The infant plaintiff was injured when another student ran into her and fell on top of her during a relay race organized by her school as part of a “field day” competition. The infant plaintiffs unanticipated collision with her fellow student was the sole cause of her injuries. The relay race was adequately supervised by two physical education teachers and all five fourth-grade teachers. No other accidents occurred at this field day or during field days in the previous two years that would have put the defendant on notice that such relay races were dangerous. (see, Buckvar v Syosset Cent. School Dist., 148 AD2d 409).

In opposing the defendant’s motion for summary judgment, the plaintiffs contended, inter alia, that the course of the relay race had been negligently designed. However, the affidavit of the plaintiffs’ expert submitted in support of the negligent design claim was purely speculative, and therefore was insufficient to defeat the motion for summary judgment (see, Fallon v Hannay & Son, 153 AD2d 95). Despite the plaintiffs’ attempt to raise factual questions, the undisputed proof establishes that the presence or absence of supervision was not a contributing factor to the happening of the accident (see, Pitner v Brentwood Union Free School Dist., 254 AD2d 340; Hauser v North Rockland Cent. School Dist. No. 1, 166 AD2d 553; Gattyan v Scarsdale Union Free School Dist. No. 1, 152 AD2d 650). Thompson, J. P., Sullivan, Krausman and Smith, JJ., concur.

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269 A.D.2d 488, 703 N.Y.S.2d 732, 2000 N.Y. App. Div. LEXIS 1953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dimisa-v-elwood-union-free-school-district-nyappdiv-2000.

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